Opinion
January 13, 1956 —
February 7, 1956.
ORIGINAL ACTION in this court for a writ of prohibition. Writ denied.
Bloodgood Passmore and Charles H. Galin, all of Milwaukee, for the petitioner.
William H. Bowman of Milwaukee, for the respondent.
The relator, Robert W. Lachenmaier, obtained an order from this court requiring Hon. GUSTAVE G. GEHRZ, Circuit Judge for Milwaukee county; the circuit court for Milwaukee county; and Rosemary Lachenmaier Abelt and William H. Bowman, her attorney; to show cause why a writ of prohibition should not be issued restraining them from any further proceedings in an action pending in the circuit court for Milwaukee county in which said Rosemary Lachenmaier Abelt is plaintiff, and the relator Robert W. Lachenmaier is defendant. Affidavits were filed in support of such application for writ of prohibition and in opposition thereto, and the facts hereinafter set forth have been gathered from said affidavits.
Under date of July 18, 1947, a judgment of divorce was entered in the circuit court for Milwaukee county in an action in which Rosemary Lachenmaier was plaintiff and Robert W. Lachenmaier was defendant, by which said plaintiff was granted an absolute divorce from the defendant, which judgment also ordered the defendant husband to pay $100 per month as support money for the two minor children of the parties, whose custody was awarded to the plaintiff wife, and to pay $75 per month as permanent alimony for the wife. In said divorce action service of the summons and complaint was made upon the defendant husband outside of the state of Wisconsin, and the defendant husband made no general appearance in said divorce action. However, the parties to said divorce action owned an equity in a parcel of real estate situated in the city of Milwaukee which the judgment of divorce ordered to be sold and applied toward the payment of support money and alimony due from the defendant husband under the provisions of said judgment of divorce.
Under date of November 9, 1954, while the relator Robert W. Lachenmaier was attending the funeral of a close relative in the city of Milwaukee, his former wife, Rosemary Lachenmaier, through her attorney, William H. Bowman, served a summons upon said relator, the venue of which summons was stated to be the circuit court for Milwaukee county, and which summons was entitled, " Rosemary Lachenmaier, plaintiff v. Robert W. Lachenmaier, defendant." At the time of the service of said summons there was annexed to the copy served upon relator a copy of said afore-mentioned judgment of divorce dated July 18, 1947. The relator thereafter served upon Attorney Bowman, counsel for Rosemary Lachenmaier, whose present name is Rosemary Lachenmaier Abelt (she having again married), a written notice of special appearance and a notice of motion for the setting aside and quashing of the service of summons and dismissal of the action on the ground of lack of jurisdiction of the court. Such motion was made returnable before the Hon. ELMER W. ROLLER, circuit judge for Milwaukee county. As a result of the hearing had upon said motion, Judge ROLLER ruled that the service of said summons with copy of the judgment attached upon relator did not subject relator to the jurisdiction of the court in the prior divorce action. This was because the only method prescribed by statute for subjecting relator to the jurisdiction of the court in the prior divorce action is by proceedings had under sec. 269.12, Stats., and the service of said summons did not comply with the requirements of said section. However, Judge ROLLER also ruled that the service of summons was sufficient to constitute the commencement of a new action independent of the divorce action, and that the circuit court for Milwaukee county had jurisdiction over the defendant in such new action.
The affidavit of the relator alleges that the Hon. GUSTAVE G. GEHRZ, circuit judge for Milwaukee county, is about to enter a default judgment against relator in said newly instituted action unless restrained by this court.
Judge ROLLER correctly held that the summons and copy of the divorce judgment served upon Robert Lachenmaier was ineffective to comply with the requirements of sec. 269.12, Stats., in order to commence proceedings in the divorce action to subject him to the provisions of the divorce judgment. Sec. 269.12 plainly provides that the procedure to accomplish such objective is by a proceeding to show cause and not by summons and complaint.
However, we further hold, as did Judge ROLLER, that the service of said summons was sufficient to institute a separate action. That part of the divorce judgment, in so far as it attempted to adjudge the payment of alimony or support money not payable out of property within the jurisdiction of the court, was void because of the lack of personal service upon the defendant husband. Whether a separate action is maintainable by the former wife for either alimony or support money in such a situation we find it unnecessary to here determine. If such an independent action is not maintainable, the issue can be raised by demurrer to the complaint or by answer and motion for summary judgment. This procedure is available to Lachenmaier without the necessity of his entering the state and jeopardizing his special appearance in so far as the original divorce action is concerned.
The application for writ of prohibition is denied with $25 costs.
STEINLE, J. took no part.